Mired in Shades of Grey: Copyright Issues

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1 Mired in Shades of Grey: Copyright Issues Eva Revitt and Scott Day NEOS Mini Conference, June 7, 2013

2 The plan... How we got here - CCH, Pentalogy, C-11 Academic institutions and Access Copyright Libraries and user rights Copyright stumpers

3 CCH vs Law Society of Upper Canada Supreme Court Rules...

4 CCH vs Law Society of Upper Canada Supreme Court Rules... research must be given a large and liberal interpreta4on in order to ensure that users rights are not unduly constrained, and is not limited to non- commercial or private context

5 CCH vs Law Society of Upper Canada Fair dealing is a user right Policy is important Availability of a license is irrelevant

6 Supreme Court - two part test Part 1 Part 2 Is it for an allowable purpose? Research Private Study Criticism Review News reporting Is the copying fair? Purpose of the dealing Character of the dealing Amount of the dealing Alternatives to the dealing Nature of the work Effect of the dealing

7 EIGHT YEARS LATER

8 Pentalogy

9 Pentalogy Supreme Court hears five (5) copyright cases, released decision July 12, 2012 Entertainment Software Association, et al. vs SOCAN Rogers Communications Inc. vs SOCAN SOCAN vs Bell Canada Alberta Education vs ACCESS ReSound vs Motion Picture Theatre Association of Canada

10 Pentalogy Supreme Court hears five (5) copyright cases, released decision July 12, 2012 Entertainment Software Association, et al. vs SOCAN Rogers Communications Inc. vs SOCAN SOCAN vs Bell Canada Alberta Education vs ACCESS ReSound vs Motion Picture Theatre Association of Canada CCH fair dealing principles reinforced, technological neutrality and the user perspective

11 Pentalogy - SOCAN

12 Pentalogy - SOCAN SOCAN vs Bell Canada

13 Pentalogy - SOCAN SOCAN vs Bell Canada SOCAN - song previews not fair dealing, wants to collect royalties

14 Pentalogy - SOCAN SOCAN vs Bell Canada SOCAN - song previews not fair dealing, wants to collect royalties Song previews not research therefore not fair dealing

15 Pentalogy - SOCAN SOCAN vs Bell Canada SOCAN - song previews not fair dealing, wants to collect royalties Song previews not research therefore not fair dealing SC - Limiting research to creative purposes would also run counter to the ordinary meaning of research, which can include many activities that do not demand the establishment of new facts or conclusions. It can be piecemeal, informal, exploratory, or confirmatory. It can in fact be undertaken for no purpose except personal interest.

16 Pentalogy - SOCAN SOCAN vs Bell Canada SOCAN - song previews not fair dealing, wants to collect royalties Song previews not research therefore not fair dealing SC - Limiting research to creative purposes would also run counter to the ordinary meaning of research, which can include many activities that do not demand the establishment of new facts or conclusions. It can be piecemeal, informal, exploratory, or confirmatory. It can in fact be undertaken for no purpose except personal interest. SC - The purpose of research should be analyzed from the perspective of the consumer as the ultimate user, not the online service provider

17 Pentalogy - SOCAN SOCAN vs Bell Canada SOCAN - song previews not fair dealing, wants to collect royalties Song previews not research therefore not fair dealing SC - Limiting research to creative purposes would also run counter to the ordinary meaning of research, which can include many activities that do not demand the establishment of new facts or conclusions. It can be piecemeal, informal, exploratory, or confirmatory. It can in fact be undertaken for no purpose except personal interest. SC - The purpose of research should be analyzed from the perspective of the consumer as the ultimate user, not the online service provider

18 Pentalogy - Access

19 Pentalogy - Access Alberta Education vs Access

20 Pentalogy - Access Alberta Education vs Access ACCESS - photocopying excerpts by teachers as class handouts is not fair dealing, wants to collect royalties

21 Pentalogy - Access Alberta Education vs Access ACCESS - photocopying excerpts by teachers as class handouts is not fair dealing, wants to collect royalties Instruction is not an allowable purpose therefore not fair dealing

22 Pentalogy - Access Alberta Education vs Access ACCESS - photocopying excerpts by teachers as class handouts is not fair dealing, wants to collect royalties Instruction is not an allowable purpose therefore not fair dealing SC -...the relevant perspective is that of the user...there is no separate purpose on the part of the teachers in this case. They have no ulterior or commercial motive when providing copies to students...the teacher/copier shares a symbiotic purpose with the student/user who is engaging in research or private study.

23 Pentalogy - Access Alberta Education vs Access ACCESS - photocopying excerpts by teachers as class handouts is not fair dealing, wants to collect royalties Instruction is not an allowable purpose therefore not fair dealing SC -...the relevant perspective is that of the user...there is no separate purpose on the part of the teachers in this case. They have no ulterior or commercial motive when providing copies to students...the teacher/copier shares a symbiotic purpose with the student/user who is engaging in research or private study. SC - With respect, the word "private" in "private study" should not be understood as requiring users to view copyrighted works in splendid isolation. Studying and learning are essentially personal endeavours, whether they are engaged in with others or in solitude.

24 Pentalogy - Access Alberta Education vs Access ACCESS - photocopying excerpts by teachers as class handouts is not fair dealing, wants to collect royalties Instruction is not an allowable purpose therefore not fair dealing SC -...the relevant perspective is that of the user...there is no separate purpose on the part of the teachers in this case. They have no ulterior or commercial motive when providing copies to students...the teacher/copier shares a symbiotic purpose with the student/user who is engaging in research or private study. SC - With respect, the word "private" in "private study" should not be understood as requiring users to view copyrighted works in splendid isolation. Studying and learning are essentially personal endeavours, whether they are engaged in with others or in solitude.

25 C-11 Copyright Modernization Act

26 C-11 Copyright Modernization Act Education, parody, satire added as fair dealing purposes

27 C-11 Copyright Modernization Act Education, parody, satire added as fair dealing purposes No PPR required [29.5(d)]

28 C-11 Copyright Modernization Act Education, parody, satire added as fair dealing purposes No PPR required [29.5(d)] Libraries can convert from formats becoming obsolete [30.1]

29 C-11 Copyright Modernization Act Education, parody, satire added as fair dealing purposes No PPR required [29.5(d)] Libraries can convert from formats becoming obsolete [30.1] Digital ILL provision [30.1(5)]

30 C-11 Copyright Modernization Act Education, parody, satire added as fair dealing purposes No PPR required [29.5(d)] Libraries can convert from formats becoming obsolete [30.1] Digital ILL provision [30.1(5)] Internet exception [30.04]

31 C-11 Copyright Modernization Act Education, parody, satire added as fair dealing purposes No PPR required [29.5(d)] Libraries can convert from formats becoming obsolete [30.1] Digital ILL provision [30.1(5)] Internet exception [30.04] Reduced damages for non-commercial infringement from $20,000 per work to a total maximum of $5,000 [38.1]

32 C-11 Copyright Modernization Act Education, parody, satire added as fair dealing purposes No PPR required [29.5(d)] Libraries can convert from formats becoming obsolete [30.1] Digital ILL provision [30.1(5)] Internet exception [30.04] Reduced damages for non-commercial infringement from $20,000 per work to a total maximum of $5,000 [38.1] Allows for user-generated content or as mash-ups [29.21]

33 C-11 Copyright Modernization Act Education, parody, satire added as fair dealing purposes No PPR required [29.5(d)] Libraries can convert from formats becoming obsolete [30.1] Digital ILL provision [30.1(5)] Internet exception [30.04] Reduced damages for non-commercial infringement from $20,000 per work to a total maximum of $5,000 [38.1] Allows for user-generated content or as mash-ups [29.21] Digital locks or technical protection measures (TPMs) trump everything else [41]

34 What the changes mean Fair dealing is a broadly available right, particularly for the educational sector Copyright Act changes support the Supreme Court s direction - Education added as a purpose Access Copyright licences and tariffs are no longer needed Technological neutrality means vastly expanded use of content online

35 Fair Dealing Policy In response: entire educational sector broadly adopts a Fair Dealing Policy addressing copying and posting by faculty and staff for students Policy represents a safe harbour interpretation of fair dealing Policy provides institutional authorization to copy and contains safeguards for content owners Policy requires that individual instances that exceed the policy receive a fair dealing assessment Fair dealing can apply in other contexts

36 Fair Dealing Policy A short excerpt includes: a. up to 10% of a copyright-protected work (including a literary work, musical score, sound recording, and an audiovisual work) b. one chapter from a book c. a single article from a periodical d. an entire individual artistic work (including a painting, print, photograph, diagram, drawing, map, chart, and plan) from a copyright-protected work containing other artistic works e. an entire newspaper article or page f. an entire single poem or musical score from a publication containing other poems or musical scores g. an entire entry from an encyclopedia, annotated bibliography, dictionary or similar reference work

37 Impact on Access Copyright 85% of Access revenue was from educational sectors K-12 sector ended participation in tariff in January, removing 40% of Access Copyright revenue 28% of non-quebec AUCC universities opted out by September % of ACCC colleges and technical institutes opted out by September 2012

38 Impact on Access Copyright Access laid off of 40% of their staff Currently involved in 4 expensive litigations Conducting consultations with their stakeholders about changes Committed to tariffs and litigation in the shorter term - will examine options Not currently interested in the most obvious business model - transactional licensing Access recognizes it s legal strategy will lose in the long run

39 York University Lawsuit March 2013: Access files claim to enforce Interim Tariff against York University - not an infringement claim Primarily a challenge to the Fair Dealing Policy York is not unique - claim addresses copying similar to what any institution has copied under the Fair Dealing Policy All institutions will benefit from a York victory in this case Suit about Access sending a message - stop loss

40 York University Lawsuit The current legal and legislative climate favours York An industry practice supports the fairness of a fair dealing approach Broad adoption and application of Fair Dealing Policy by universities supports York s case Universities should opt out of Model Licences and apply a fair dealing and permissions model for copyright management

41 Libraries and Fair Dealing Fair dealing should be the foundation for library copyright policies Fair dealing is an open ended concept - policy need only be demonstrably fair in order to apply Policy amounts for ILL, document delivery, reserves can be based on Fair Dealing Policy amounts The above works only if fair dealing assessments by a designated evaluator are readily available for requests that exceed these amounts Protections for the rights of content owners should be provided by library policies when necessary - but avoid unnecessary restrictions

42 Libraries and Fair Dealing Research is given a broad interpretation: all library patrons would qualify Libraries can do anything for a patron that that patron can do for themselves under fair dealing - Risk is low Educational Fair Dealing Policy and Copyright Act educational exceptions apply to ereserves

43 Video streams PPR, site and library viewing licence payments not required for educational performances Any classroom use of content can now be used online in the form of a lesson including whole video and audio works (30.01) A lesson can be a virtual classroom session or content created as a lesson and posted in an LMS or ereserves Anti-circumvention measures ( Digital Locks ) create a barrier for the use of DVDs

44 Screen Capture for DVDs Canadian anti-circumvention measures mirror U.S. Digital Millennium Copyright Act (DMCA) measures in effect since 1998 U.S. example is instructive of how to proceed with using locked video sources for education Screen capture widely used by U.S. educators to create clips and streams from locked DVDs without circumvention U.S. Register of Copyrights recognizes the method as a legitimate alternative to circumventing locks

45 Screen Capture for DVDs The software player must use licensed decryption - players bundled with operating systems or offered for sale are likely to use licensed decryption Player provides the legal decryption, then screen capture creates a unique digital copy of the video Exception applies to lessons - video or audio streams for individual classes at the request of an instructor through an LMS or ereserves (or clips made for in-class performance) Exception has important requirements that must be followed in order for it to apply

46 Contracts Digital content is more likely licensed - not purchased and owned by libraries Contracts terms associated with library digital content previously provided greater access to content than otherwise available Copyright changes mean that contract terms are now often more restrictive than fair dealing uses A paper copy of a journal article can be scanned and posted in ereserves for a class under fair dealing The same article accessed through a database may have contract terms that disallow posting in ereserves

47 A copying free for all? Fair dealing only deals with limited copying Universities and colleges spend hundreds of millions on learning materials each year - including textbook purchases and transactional licensing Better messaging is required from the educational sector Education is in the public interest

48 COPYRIGHT STUMPERS

49

50 User requests an ILL for one article from a journal, when are they able to place another request for a different article, from the same journal and same issue? (Scott)

51 User requests an ILL for one article from a journal, when are they able to place another request for a different article, from the same journal and same issue? (Scott) Apply your fair dealing policy - 10% (usually) or one article

52 User requests an ILL for one article from a journal, when are they able to place another request for a different article, from the same journal and same issue? (Scott) Apply your fair dealing policy - 10% (usually) or one article Apply a fair dealing assessment (bump it up to an evaluator )

53 User requests an ILL for one article from a journal, when are they able to place another request for a different article, from the same journal and same issue? (Scott) Apply your fair dealing policy - 10% (usually) or one article Apply a fair dealing assessment (bump it up to an evaluator ) Policy of the Great Library - As to the amount of copying, discretion must be used. No copies will be made for any purpose other than that specifically set out on the request form. Ordinarily, requests for a copy of one case, one article or one statutory reference will be satisfied as a matter of routine. Requests for substantial copying from secondary sources (e.g. in excess of 5% of the volume or more than two citations from one volume) will be referred to the Reference Librarian and may ultimately be refused.

54

55 I have received a request from an instructor who wants to show excerpts of a movie available on Netflix. My initial instinct was to say "no" because it is password-protected (a digital lock). However, would use of Netflix services be considered a rental and, as such, permissible to use in the classroom? (Eva)

56 I have received a request from an instructor who wants to show excerpts of a movie available on Netflix. My initial instinct was to say "no" because it is password-protected (a digital lock). However, would use of Netflix services be considered a rental and, as such, permissible to use in the classroom? (Eva)

57 I have received a request from an instructor who wants to show excerpts of a movie available on Netflix. My initial instinct was to say "no" because it is password-protected (a digital lock). However, would use of Netflix services be considered a rental and, as such, permissible to use in the classroom? (Eva) This is a contract issue not a copyright issue. You may be found in breach of contract.

58 I have received a request from an instructor who wants to show excerpts of a movie available on Netflix. My initial instinct was to say "no" because it is password-protected (a digital lock). However, would use of Netflix services be considered a rental and, as such, permissible to use in the classroom? (Eva) This is a contract issue not a copyright issue. You may be found in breach of contract.

59 I have received a request from an instructor who wants to show excerpts of a movie available on Netflix. My initial instinct was to say "no" because it is password-protected (a digital lock). However, would use of Netflix services be considered a rental and, as such, permissible to use in the classroom? (Eva) This is a contract issue not a copyright issue. You may be found in breach of contract.

60 I have received a request from an instructor who wants to show excerpts of a movie available on Netflix. My initial instinct was to say "no" because it is password-protected (a digital lock). However, would use of Netflix services be considered a rental and, as such, permissible to use in the classroom? (Eva) This is a contract issue not a copyright issue. You may be found in breach of contract.

61 I have received a request from an instructor who wants to show excerpts of a movie available on Netflix. My initial instinct was to say "no" because it is password-protected (a digital lock). However, would use of Netflix services be considered a rental and, as such, permissible to use in the classroom? (Eva) This is a contract issue not a copyright issue. You may be found in breach of contract.

62

63

64 How does your institution deal with the possibility of instructors uploading infringing material to your learning management system. What is the institution s responsibility? (Scott) Institution is responsible for the acts of those under its authority Policies and Guidelines Education, Support Academic freedom Institution may need to demonstrate compliance

65 How does your institution deal with the possibility of instructors uploading infringing material to your learning management system. What is the institution s responsibility? (Scott) Institution is responsible for the acts of those under its authority Policies and Guidelines Education, Support Academic freedom Institution may need to demonstrate compliance

66 How does your institution deal with the possibility of instructors uploading infringing material to your learning management system. What is the institution s responsibility? (Scott) Institution is responsible for the acts of those under its authority Policies and Guidelines Education, Support Academic freedom Institution may need to demonstrate compliance

67 How does your institution deal with the possibility of instructors uploading infringing material to your learning management system. What is the institution s responsibility? (Scott) Institution is responsible for the acts of those under its authority Policies and Guidelines Education, Support Academic freedom Institution may need to demonstrate compliance

68 How does your institution deal with the possibility of instructors uploading infringing material to your learning management system. What is the institution s responsibility? (Scott) Institution is responsible for the acts of those under its authority Policies and Guidelines Education, Support Academic freedom Institution may need to demonstrate compliance

69 How does your institution deal with the possibility of instructors uploading infringing material to your learning management system. What is the institution s responsibility? (Scott) Institution is responsible for the acts of those under its authority Policies and Guidelines Education, Support Academic freedom Institution may need to demonstrate compliance

70 How does your institution deal with the possibility of instructors uploading infringing material to your learning management system. What is the institution s responsibility? (Scott) Institution is responsible for the acts of those under its authority Policies and Guidelines Education, Support Academic freedom Institution may need to demonstrate compliance

71

72 The terms of use for Harvard Business Review are ridiculous. We license this journal through Ebsco. I m assuming that the Ebsco license applies and not the Harvard Business Review terms of use. Am I correct? (Eva)

73 The terms of use for Harvard Business Review are ridiculous. We license this journal through Ebsco. I m assuming that the Ebsco license applies and not the Harvard Business Review terms of use. Am I correct? (Eva)

74 Harvard Business Review....Business Review and Harvard Business Publishing Newsletter content on EBSCOhost is licensed for the private individual use of authorized EBSCOhost users. It is not intended for use as assigned course material in academic institutions nor as corporate learning or training materials in businesses. Academic licensees may not use this content in electronic reserves, electronic course packs, persistent linking from syllabi or by any other means of incorporating the content into course resources. Business licensees may not host this content on learning management systems or use persistent linking or other means to incorporate the content into learning management systems. Harvard Business Publishing will be pleased to grant permission to make this content available through such means. For rates and permission, contact Copyright applies to all Abstracts. Ebsco... Notwithstanding the above restrictions, this paragraph shall not restrict the use of the materials under the doctrine of fair use as defined under the laws of the United States. Publishers may impose their own conditions of use applicable only to their content. Contract issue. Contract law trumps fair dealing.

75

76 I would like to copy a chapter and a number of articles from various journals and post to Blackboard. These are required reading for my course and would substitute for using a textbook. Am I violating copyright? (Scott)

77 I would like to copy a chapter and a number of articles from various journals and post to Blackboard. These are required reading for my course and would substitute for using a textbook. Am I violating copyright? (Scott)

78 I would like to copy a chapter and a number of articles from various journals and post to Blackboard. These are required reading for my course and would substitute for using a textbook. Am I violating copyright? (Scott) NO Faculty member has the right to choose whatever materials are suitable for their course - payment is required whenever fair dealing or a Copyright Act exception does not apply to the use Fair Dealing Policy covers this use No use from a single source should replace the purchase of that source Supreme Court ruled the amount used must be assessed for each individual source and not the total amount used in the aggregate

79 The Copyright Modernization Act negates the need for PPR, however, many vendors have individual and institutional pricing. The difference is often hundreds of dollars, do I have to pay the institutional price? What if there is a license available? (Eva) The issue is not about public performance rights but about tiered pricing

80 The Copyright Modernization Act negates the need for PPR, however, many vendors have individual and institutional pricing. The difference is often hundreds of dollars, do I have to pay the institutional price? What if there is a license available? (Eva) The issue is not about public performance rights but about tiered pricing

81 The Copyright Modernization Act negates the need for PPR, however, many vendors have individual and institutional pricing. The difference is often hundreds of dollars, do I have to pay the institutional price? What if there is a license available? (Eva) The issue is not about public performance rights but about tiered pricing

82 Audio Cine

83 An instructor would like to include an article found on the Internet in ereserves. The website includes a notice that indicates the content...cannot be used for any purpose whatsoever without the permission of the website owner. Does a notice have the same force as a contract? (Scott) NO A copyright notice is far different from a signed contract A notice does not preclude the application of the Internet exception or fair dealing A clearly visible notice that specifically disallows educational use would apply to uses under the Internet exception Click through or other agreements made prior to accessing content will have terms that apply Item must have been legally posted A citation must be provided

84

85 I want to include entire works such as pictures and photographs in a dissertation that will be published, is this OK? (Eva)

86 I want to include entire works such as pictures and photographs in a dissertation that will be published, is this OK? (Eva) YES Supreme Court ruled that it may be possible to deal fairly with an entire work In the context of a dissertation, it is very likely fair to use whole works Library and Archives of Canada no longer requires that included third party works have permission Publishers may choose to get permission

87

88 Contact Scott Day Eva Revitt

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